EEO – Employer Law Reporthttps://www.employerlawreport.com
Helping employers avoid the storm of legal issues in the workplaceFri, 18 Jan 2019 16:20:07 +0000en-UShourly1https://wordpress.org/?v=4.9.9Sixth Circuit holds that Title VII prohibits discrimination based on transgender and transitioning status notwithstanding the employer’s religious objectionshttps://www.employerlawreport.com/2018/03/articles/eeo/sixth-circuit-holds-that-title-vii-prohibits-discrimination-based-on-transgender-and-transitioning-status-notwithstanding-the-employers-religious-objections/
Mon, 19 Mar 2018 15:31:41 +0000https://www.employerlawreport.com/?p=6192Employers cannot discriminate against employees based on their transgender or transitioning status, despite (at least in some cases) the employer’s sincere religious objections. Those are the key takeaways of the 6th Circuit’s landmark decision in EEOC v. R.G. & G.R. Employers who are subject to Title VII, particularly those in the 6th Circuit (i.e., Kentucky, Michigan, Ohio and Tennessee), should review their policies to ensure that they comply with this decision.

In EEOC v. R.G., the Equal Employment Opportunity Commission (EEOC) filed suit under Title VII after a Michigan funeral director, Aimee Stephens, was fired because of …

Employers cannot discriminate against employees based on their transgender or transitioning status, despite (at least in some cases) the employer’s sincere religious objections. Those are the key takeaways of the 6th Circuit’s landmark decision in EEOC v. R.G. & G.R. Employers who are subject to Title VII, particularly those in the 6th Circuit (i.e., Kentucky, Michigan, Ohio and Tennessee), should review their policies to ensure that they comply with this decision.

In EEOC v. R.G., the Equal Employment Opportunity Commission (EEOC) filed suit under Title VII after a Michigan funeral director, Aimee Stephens, was fired because of her intent to transition from male to female. The owner of the funeral home, Thomas Rost, is a lifelong Christian who believes that employing a transgender funeral director will make him complicit “in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” Rost also believes that employing a transgender funeral director will distract his clients and interfere with their healing process, will interfere with his calling to serve God by ministering to grieving people, and will pressure him to leave the funeral industry and end his ministry.

The 6th Circuit identified two ways that the funeral home violated Title VII. First, it is well-established that Title VII prohibits discrimination based on sex stereotypes, and that occurs when an employer fires an employee because he or she intends to dress like a member of the opposite sex. Second, discrimination on the basis of transgender and transitioning status violates Title VII because “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”

Next, the 6th Circuit considered whether Rost’s sincerely-held religious beliefs provide a defense to liability under Title VII. Religious institutions are protected from certain discrimination claims where the action taken is critical to the religious function of the institution. This is called the “ministerial exception.” The court held that Title VII’s ministerial exception does not apply because the funeral home is not a religious institution and Stephens was not a ministerial employee. The court further held that Rost did not satisfy the requirements of the Religious Freedom Restoration Act (RFRA), which bars the government from enforcing generally-applicable rules that substantially burden a person’s exercise of religion unless the government’s action is the least restrictive means of furthering a compelling government interest.

Rost identified two burdens on his exercise of religion but the 6th Circuit concluded that neither of them was justified under RFRA. Rost first argued that Stephens’s appearance would distract clients and hamper Rost’s ability to minister to them. The 6th Sixth Circuit rejected this argument because, as a matter of law, “a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.” The court further stated that even if the customers’ biases were substantiated by evidence in the record, it would refuse to conclude that discriminatory policies were essential to a business or to the owner’s religious exercise.

Rost also argued that RFRA applied because he was required to choose between engaging in conduct that violates his religious beliefs or being penalized for engaging in such conduct. The 6th Circuit disagreed and held that “as a matter of law, tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.” In other words, “bare compliance with Title VII—without actually assisting or facilitating Stephens’s transition efforts—does not amount to an endorsement of Stephens’s views.” The court reasoned that this outcome was no different from Rost’s admitted decision to employ people with non-Christian religious views or no religious views. “At bottom, the fact that Rost sincerely believes that he is being compelled to make such an endorsement does not make it so.”

EEOC v. R.G. is likely to lead to more claims by transgender and transitioning employees who will seek protection under Title VII. Although the issue will not be settled until the Supreme Court rules on it, employers should be aware of this decision and, at least in the 6th Circuit, modify their EEO policies to include transgender and transitioning employees as a protected class. Those employers will also want to instruct their HR staff and operations supervisors and managers regarding the potential legal implications of treating employees differently based on their transgender and transitioning status.

]]>Second Circuit holds that Title VII prohibits sexual orientation discriminationhttps://www.employerlawreport.com/2018/03/articles/labor-relations/second-circuit-holds-that-title-vii-prohibits-sexual-orientation-discrimination/
Wed, 07 Mar 2018 20:15:19 +0000https://www.employerlawreport.com/?p=6160In a landmark decision, the 2nd Circuit Court of Appeals in Zarda v. Altitude Express, Inc., en banc, became the second federal appellate court to hold that Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)), which makes it unlawful for employers to discriminate on the basis of sex, also prohibits discrimination on the basis of a person’s sexual orientation. It appears that the defendant does not intend to seek Supreme Court review. Therefore, employers subject to Title VII, particularly those in the Second Circuit (i.e., Connecticut, New York and …Continue Reading →]]>

In a landmark decision, the 2nd Circuit Court of Appeals in Zarda v. Altitude Express, Inc., en banc, became the second federal appellate court to hold that Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)), which makes it unlawful for employers to discriminate on the basis of sex, also prohibits discrimination on the basis of a person’s sexual orientation. It appears that the defendant does not intend to seek Supreme Court review. Therefore, employers subject to Title VII, particularly those in the Second Circuit (i.e., Connecticut, New York and Vermont), should know about this opinion and consider how and whether it may apply to them.

Last week’s decision came too late for plaintiff Donald Zarda, who died in a sky-diving accident in 2014. Mr. Zarda had filed suit in 2010 against his employer, Altitude Express, alleging that he was fired from his job as a sky-diving instructor because of his sexual orientation. The lower court dismissed Mr. Zarda’s Title VII claim but allowed him to try a state-law claim for sexual orientation discrimination that required a higher burden of proof. After losing on that claim at trial, Mr. Zarda (and subsequently his estate) appealed the dismissal of his Title VII claim. A three-member panel of the 2nd Circuit applied existing law and affirmed dismissal of the claim. But the Second Circuit took the rare step of agreeing to hear the case en banc, and all 13 judges heard oral argument last fall. On Feb. 26, 2018, ten of those judges held that Title VII prohibits employers from discriminating on the basis of sexual orientation, and voted to overturn their prior cases to the contrary. Eight judges wrote separate opinions.

Writing for the plurality, Chief Judge Katzmann observed that for many years, the U.S. Equal Employment Opportunity Commission (EEOC) and federal appellate courts had agreed that Title VII’s prohibition of discrimination “because of … sex” did not protect employees from discrimination based on their sexual orientation. But, he noted, the EEOC reversed its position in 2015 in its Baldwin v. Foxx decision and the 7th Circuit reversed its position in 2017 in its en banc decision in Hively v. Ivy Tech Cmty. College of Ind. (holding that Title VII bars sexual orientation discrimination). Because these new decisions raised arguments not previously considered by the Second Circuit, the judges agreed to revisit the issue of whether Title VII bars sexual orientation discrimination.

Chief Judge Katzman described three reasons for concluding that Title VII supports claims for sexual orientation discrimination despite longstanding precedent to the contrary. First, Title VII is violated whenever sex is a motivating factor for an employment practice (42 U.S.C. § 2000e-2(m)) – sex need not be the only motivating factor – and “sexual orientation discrimination is motivated, at least in part, by [the employee’s] sex.” Second, the U.S. Supreme Court in Price Waterhouse v. Hopkins held that Title VII bars gender stereotyping, and discrimination based on sexual orientation violates the gender stereotype that men and women should be heterosexual. Third, Title VII bars discrimination based upon an employee’s decision to associate with someone of a particular race and the same rationale applies when an employer discriminates based on an employee’s decision to associate with someone of a particular sex.

Following the Hively and Zarda decisions, more employees in the LGBT community are likely to pursue claims seeking protection under Title VII – not only in the 2nd and 7th Circuits, but elsewhere in an effort to expand this federal trend. Courts across the country may reach different conclusions about the viability of these claims until (and if) the issue reaches the Supreme Court, but many states and municipalities already include sexual orientation as a protected class in their discrimination laws. For now, therefore, employers should be aware of these decisions and, at least in the 2nd and 7th Circuits, should modify their workforce training initiatives to include a focus on sexual orientation and related issues. Those employers will also want to instruct their HR staff and operations supervisors and managers regarding the potential legal implications of treating employees differently based on their sexual orientation.

]]>When can an employer be found liable for ‘supervisor’ harassment?https://www.employerlawreport.com/2017/10/articles/eeo/when-can-an-employer-be-found-liable-for-supervisor-harassment/
Fri, 06 Oct 2017 14:13:52 +0000http://www.employerlawreport.com/?p=6101In an opinion issued this week, the Sixth Circuit Court of Appeals (which covers Ohio, Michigan, Kentucky and Tennessee) affirmed dismissal of a case alleging same-sex sexual harassment primarily based on the prompt and effective action taken by the employer in response to the plaintiff employee’s complaint.

Plaintiff (Hylko) and the alleged harasser (Hemphill) worked closely together at U.S. Steel. Hemphill trained Hylko and assigned his duties. Both reported to an area manager.

Hylko claimed that Hemphill harassed him as soon as they started working together, that Hemphill regularly asked Hylko about his sex life and that Hemphill grabbed …

In an opinion issued this week, the Sixth Circuit Court of Appeals (which covers Ohio, Michigan, Kentucky and Tennessee) affirmed dismissal of a case alleging same-sex sexual harassment primarily based on the prompt and effective action taken by the employer in response to the plaintiff employee’s complaint.

Plaintiff (Hylko) and the alleged harasser (Hemphill) worked closely together at U.S. Steel. Hemphill trained Hylko and assigned his duties. Both reported to an area manager.

Hylko claimed that Hemphill harassed him as soon as they started working together, that Hemphill regularly asked Hylko about his sex life and that Hemphill grabbed his buttocks and private parts.

Hylko complained to management, who offered him a transfer to a different area of the plant, which he accepted. Management then met with Hemphill, who admitted some of the harassment. They then gave him a verbal warning, one week suspension and demotion to shift manager and made him take a leadership class. No harassment occurred again after that.

The standard for employer liability for hostile work environment harassment that does not result in a tangible adverse employment action depends typically on whether or not the harasser is the victim’s supervisor. An employer is vicariously liable for a hostile work environment created by a supervisor unless it can prove that (a) the employer exercised reasonable care to prevent and correct promptly any harassment; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. By contrast, an employer is liable for hostile work environment harassment by employees who are not supervisors only if the alleged victim can prove the employer was “negligent in failing to prevent harassment from taking place.” In assessing such negligence, the court will look to such factors as the nature and degree of authority wielded by the harasser and evidence the employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints or effectively discouraged complaints from being filed. In essence, the supervisory status of the alleged results in a shifting of the burden of proof with respect to whether the employer has taken necessary steps to prevent and respond to allegations of harassment.

Therefore, the court first analyzed whether U.S. Steel could be liable for Hemphill’s conduct as an alleged “supervisor.” Based on the U.S. Supreme Court’s 2013 decision in Vance v. Ball State University, “an employee is a ‘supervisor’ under Title VII only if he is ‘empowered by the employer to take tangible employment actions against the victim.’” Although U.S. Steel and Hemphill both referred to him as a “supervisor,” the court held he had no authority to promote, demote or fire Hylko and could only recommend disciplinary action (which management could take or leave). Therefore, because Hemphill “was not authorized to effect a significant change in Hylko’s employment status,” the court concluded Hemphill did not meet the legal definition of “supervisor.”

The court then addressed whether U.S. Steel could be liable for Hemphill’s conduct as a “co-worker.” Hylko claimed U.S. Steel treated men who harassed women more harshly than it treated Hemphill, but the court held there was no requirement that an employer treat every harassment complaint the same. Rather “a response is adequate if it is reasonably calculated to end the harassment.” Finding that the company had promptly and adequately taken action to end the harassment, there the court found no basis for employer liability.

Takeaways

Although the company referred to Hemphill as a “supervisor,” the court found this was a “colloquial” use and did not control whether the employee was one under Title VII standards. However, not all courts would be so forgiving. Employers will want to be careful to make sure employees are identified as “supervisors” only if they are actually empowered to effect significant change in the employment status of the people with whom they work, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or to make decisions that would cause a significant change in benefits.

This case also underscores the importance of the timeliness and effectiveness of the employer response to a harassment complaint. Here, Hylko admitted that after he complained, the employer’s response resulted in an end to the alleged harassment. Undoubtedly, therefore, the result in the case was driven by this fact. Increasingly, many courts are reluctant to impose strict “supervisor” liability where the employer fully addresses and ends the harassment.

The case involved a store manager who was transferred into an AutoZone store in Cordova, Tennessee. Shortly after arriving, he began to make lewd and obscene sexual comments and propositions to one female employee in particular and also made sexual comments to two other female employees as well. …

In a decision issued on June 9, the Sixth Circuit Court of Appeals (which covers Ohio, Michigan, Kentucky and Tennessee) affirmed the dismissal of sexual harassment claims brought by the Equal Employment Opportunity Commission (EEOC) on behalf of three female AutoZone employees. In its decision, the Court reaffirmed some important principles.

The case involved a store manager who was transferred into an AutoZone store in Cordova, Tennessee. Shortly after arriving, he began to make lewd and obscene sexual comments and propositions to one female employee in particular and also made sexual comments to two other female employees as well. Under AutoZone’s system, the store manager did not have the authority to fire, promote, reassign and take tangible employment actions with respect to store employees (even though he could make some hires). Those responsibilities were reserved for the district manager (who visited the store at least once a week).

In affirming dismissal of the plaintiffs’ sexual harassment claims, the Court first held that the company could not be liable for the store manager’s actions based on imputed knowledge because he was not the employees’ manager/supervisor under the law. In reaching this conclusion, the court noted that “AutoZone did not empower [the store manager] to take any tangible employment action against his victims.”

In addition, the Court also affirmed dismissal on the basis that, even if he were the victims’ supervisor/manager, the company met the requirements for an affirmative defense to liability under the Supreme Court’s decisions in Farragher and Ellerth. That is, the Court found that the company had not only posted an effective anti-harassment policy but had also included that policy in an employee handbook, which it required every employee to read and acknowledge. Although the female employees claimed that they had never read the anti-harassment policy, the Court stated that “a human resources representative need not look over each employee’s shoulder as she reads each page of AutoZone’s handbook,” that their not reading it was “not AutoZone’s fault” and that it exercised “reasonable care by requiring employees to acknowledge their responsibility to read the policy by signing a form to that effect.” In addition, the Court found that the company had taken very prompt and effective action after learning of the complaints, including moving the store manager out of that store and then terminating him.

Further, as to the other prong of the Farracher/Ellerth affirmative defense, namely undue delay in reporting the complaints, the Court found that the employees did not report the alleged harassment by the store manager until two and a half months later. Although one of the employees had talked to a colleague in another store, that was not sufficient to bring the matter to the company’s attention. Accordingly, the Court held that even if the store manager had been their supervisor/manager under the law, the company’s defense to liability was established in this regard as well.

The bottom lineThis decision reaffirms two important principles.

First, when analyzing whether a harassment situation involves a “supervisor,” careful attention should be given to understanding the authority (or lack of authority) of that person over the complaining employee.

Second, this decision reaffirms the importance of having an effective policy (preferably signed off by employees as part of a handbook or otherwise) and taking prompt and effective action to address harassment situations when they arise. Thus, even if the alleged harasser is determined to be a supervisor/manager under the law, the company can be rewarded with a dismissal before trial even against the nation’s primary enforcer of the equal employment opportunity laws, as here.

]]>Trump administration’s 2018 budget proposes a merger of the EEOC and the OFCCP, prompting concerns over whether the two agencies can effectively operate as onehttps://www.employerlawreport.com/2017/06/articles/eeo/trump-administrations-2018-budget-proposes-a-merger-of-the-eeoc-and-the-ofccp-prompting-concerns-over-whether-the-two-agencies-can-effectively-operate-as-one/
Mon, 12 Jun 2017 11:00:42 +0000http://www.employerlawreport.com/?p=6051The Trump administration’s proposed fiscal year 2018 budget includes a merger of the Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC). If the budget is approved, the OFCCP, which has jurisdiction over federal contractors, would merge into the EEOC, which has jurisdiction over private and public employers; forming a combined super equal employment opportunity enforcement agency.

Background of the two agencies

The OFCCP enforces Executive Order 11246, the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), and Section 503 of the Rehabilitation Act (Section 503), which together prohibit workplace discrimination, harassment and retaliation on the …

The Trump administration’s proposed fiscal year 2018 budget includes a merger of the Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC). If the budget is approved, the OFCCP, which has jurisdiction over federal contractors, would merge into the EEOC, which has jurisdiction over private and public employers; forming a combined super equal employment opportunity enforcement agency.

Background of the two agencies

The OFCCP enforces Executive Order 11246, the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), and Section 503 of the Rehabilitation Act (Section 503), which together prohibit workplace discrimination, harassment and retaliation on the basis of sex, race, national origin, color, religion, sexual orientation, gender identity, disability and covered veteran status for covered federal contractors and subcontractors. Affirmative action is required on the basis of sex, race, national origin, disability, and covered veteran status in all employment decisions. The OFCCP takes a more proactive approach when enforcing nondiscrimination, requiring federal contractors to draft affirmative action plans that provide equal employment opportunities. The OFCCP audits federal contractors and subcontractors and can impose penalties and citations through the administrative process. Once OFCCP finds areas of noncompliance, it engages in conciliation with the contractor.

The EEOC enforces workplace equal employment opportunity laws on the basis of sex (including gender identity and sexual orientation), pregnancy, race, national origin, color, religion, disability, age and genetic information under several federal laws within its jurisdiction. The EEOC cannot impose fines or penalties; it must file a lawsuit in federal court to enforce the laws within its jurisdiction. The EEOC also does not audit employers, but instead relies on employee charges of discrimination, harassment or retaliation.

Criticism of the proposal comes from both sides

The way in which the two agencies differ in their respective missions and the enforcement of those missions has caused the proposed merger to be the subject of much discussion about whether the agencies could effectively merge. Both sides are against the proposal. The US Chamber of Commerce and the NAACP (and 73 other civil rights groups) separately wrote Congress in opposition to the proposal, which presently is the subject of a Congressional hearing.

If merged, the EEOC would gain access to the OFCCP’s extensive compliance information provided by contractors, potentially allowing EEOC employees to look beyond reported violations of Title VII and impose harsher penalties based on other areas of noncompliance. Additionally, federal contractors who refuse to conciliate may be subject to punitive and compensatory damages from the EEOC division for systemic discrimination in addition to the OFCCP’s noncompliance penalties. Basically, employer groups fear that the combined agency would use the broadest powers of each agency to pursue greater enforcement.

The budget also proposes a 16 percent reduction of the OFCCP’s current funding level (from $105 million to $88 million) and a reduction of 131 full-time employees from the workforce (a nearly 23 percent reduction). The EEOC is currently backlogged with cases and operates on few resources, so expanding the mission of the EEOC will likely further reduce the number of cases that get resolved in a timely manner. Those who argue against combining the agencies question whether the EEOC could handle a greater workload if it is unable to manage its current workload.

Are there any benefits to a potential merger?

The merger is ideal for some stakeholders because both agencies engage in overlapping nondiscrimination and equal employment opportunity missions. Thus, the merger could be more cost-effective, resulting in management efficiency, the sharing of enforcement data and improved customer service.

Further, if the government could assure that the enforcement arms would operate separate OFCCP audits and EEOC investigations without excessive information sharing, business groups in favor of the monetary savings may get behind the proposal. So far, too much is uncertain for business group support of the proposal.

Is this likely to ever occur? Is it even possible?

Before the merger occurs, President Trump would need to amend Executive Order 11246 to transfer the legal responsibilities of the OFCCP to the EEOC, which can easily be done through executive order. Additionally, Congress will need to amend Section 503 and VEVRAA to transfer jurisdiction for enforcement to the EEOC, which has been done in the past for the ADEA (age discrimination) and Equal Pay Act, and approve the proposed budget in its entirety.

We will continue to monitor this proposal and track any developments.

Many thanks to summer associate Kristen Lawrence for her assistance in preparing this post.

In fiscal 2015, the EEOC received 27, 893 private-sector charges alleging harassment, representing more than 31 percent of all charges filed with the EEOC. As Commissioner Lipnic commented, harassment charges “remain a far too dominant part” of the agency’s workload.

The guidance is intended to assist not only EEOC employees, but employers and employees generally to understand the extent of …

Following the report of a 16-member task force led by Equal Employment Opportunity Commission (EEOC) Commissioners Chai Feldblum (D) and Victoria Lipnic (R) in 2016, last week the EEOC issued proposed guidance for public comment on or before Feb. 9.

In fiscal 2015, the EEOC received 27, 893 private-sector charges alleging harassment, representing more than 31 percent of all charges filed with the EEOC. As Commissioner Lipnic commented, harassment charges “remain a far too dominant part” of the agency’s workload.

The guidance is intended to assist not only EEOC employees, but employers and employees generally to understand the extent of the problem and ways in which harassment can be prevented and addressed. And it pulls that together in one document, superseding five existing EEOC enforcement documents.

One of the issues it addresses and seeks comments on is the two-prong test for determining whether harassment by a supervisor is actionable, even though there is no adverse employment action, if the employer acts promptly and appropriately on its first notice of such alleged conduct. Under the rule established by the U.S. Supreme Court in the EllerthandFaragher cases, a defense to such liability requires not only that the employer act appropriately and promptly but also that the employee has “unreasonably” delayed in making a complaint. Subsequently, a federal Court of Appeals held that an employer could defend such a claim if it did everything appropriately and promptly, notwithstanding that the employee did not unduly delay in making a complaint, where this was the first notice to the employer of the problem. The proposed guidance, however, adheres literally to the Ellerth/Faragher standard requiring undue delay by an employee as well.

Another issue is the continuation of the EEOC’s position that Title VII bars claims based on gender identity and/or sexual orientation, a question currently under robust litigation in several courts.

Although the proposed guidance was issued in the waning hours of the Obama administration, it is likely to survive the change in administration. A major reason for this is that Commissioner Lipnic, who co-chaired the task force and co-authored the guidance, will likely be named the new chair of the EEOC in the next several days.

]]>Eleventh Circuit rejects EEOC position regarding reassignment as a reasonable accommodationhttps://www.employerlawreport.com/2016/12/articles/eeo/eleventh-circuit-rejects-eeoc-position-regarding-reassignment-as-a-reasonable-accommodation/
Mon, 12 Dec 2016 18:12:54 +0000http://www.employerlawreport.com/?p=5796Rejecting the EEOC’s position that an employer must reassign a qualified individual with a disability to a vacant position as a reasonable accommodation so long as the individual was minimally qualified for the position, the 11th Circuit on Dec. 7, 2016 held that even disabled workers in need of a reasonable accommodation must compete with other qualified employees for the vacancy. In EEOC v. St. Joseph’s Hosp., Inc., the plaintiff was a nurse who needed a cane for mobility. Because the cane posed a safety hazard in the psychiatric ward where she worked, she was given the opportunity …Continue Reading →]]>

Rejecting the EEOC’s position that an employer must reassign a qualified individual with a disability to a vacant position as a reasonable accommodation so long as the individual was minimally qualified for the position, the 11th Circuit on Dec. 7, 2016 held that even disabled workers in need of a reasonable accommodation must compete with other qualified employees for the vacancy. In EEOC v. St. Joseph’s Hosp., Inc., the plaintiff was a nurse who needed a cane for mobility. Because the cane posed a safety hazard in the psychiatric ward where she worked, she was given the opportunity to apply for other jobs, but was not given any preference due to her disability. When she did not obtain any other position at the hospital, she was terminated and the EEOC brought suit on her behalf.

After a jury trial resulted in a defense verdict, the trial court entered an injunction order requiring the hospital to mediate, which failed to result in reinstatement. On appeal, the 11th Circuit expressly addressed the question, “Does the ADA mandate noncompetitive reassignment?” The court concluded that the ADA does not require such preferential treatment of the disabled. In reaching this conclusion, the court relied on the statutory language that includes “reassignment to a vacant position” as part of a non-exhaustive list of items that the term reasonable accommodation “may include.” According to the court, the use of the word “may” implies that reassignment will be reasonable in some circumstances but not others.

The court also noted its well-settled ADA precedent that employers are only required to provide alternative employment opportunities that are reasonably available under the employer’s existing policies. As examples, the court cited prior cases holding that the ADA does not require employers to reassign disabled employees in violation of its governing civil service rules or seniority rights found in a collective bargaining agreement. Similarly, the court did not believe that the hospital had to violate its policy of filling vacancies based on merit. In fact, the court stated:

Passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. In the case of hospitals, which is this case, the well-being and even the lives of patients can depend on having the best-qualified personnel. Undermining a hospital’s best-qualified hiring or transfer policy imposes substantial costs on the hospital and potentially on patients.

Finally, the court held that the intent of the ADA is to provide meaningful but equal employment opportunities for the disabled and was never meant to require discrimination against the non-disabled.

Takeaways:

The St. Joseph’s Hospital decision adds to split in the circuit courts of appeals on this issue. As the court notes in a footnote, it is consistent with decisions from the 5th and 8th Circuits, but is contrary to the decisions of the 7th, 10th and D.C. Circuits, which agree with the EEOC that the reasonable accommodation obligation requires employers to violate their own policies, including those that require the hiring of the best qualified candidates. The 6th Circuit in Hedrick v. Western Reserve Care System and Forum Health has also held that an employee needing reasonable accommodation is not entitled to “preferential treatment” in reassignment.

In the guidance, the EEOC defines national origin discrimination as “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural or linguistic characteristics of a particular national origin group.” This includes discrimination because of an individual’s “place of origin” such as a country, a former country (e.g., Yugoslavia) or a geographic region closely associated with a particular national origin group (e.g., Kurdistan). …

In the guidance, the EEOC defines national origin discrimination as “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural or linguistic characteristics of a particular national origin group.” This includes discrimination because of an individual’s “place of origin” such as a country, a former country (e.g., Yugoslavia) or a geographic region closely associated with a particular national origin group (e.g., Kurdistan). Further, a “national origin” or “ethnic” group is a “group of people sharing a common language, culture, ancestry, race and or other social characteristics,” such as “Hispanics, Arabs or Roma.”

Under the guidance, discrimination includes treating persons less favorably because they do not belong to a particular ethnic group, as well as because they do. Employees are also protected from discrimination because they associate with someone of a particular national origin (e.g., by marriage). The EEOC also takes the position that national origin discrimination can be based on an individual’s “perceived” status as a member of an ethnic group. However, as we explained in a recent blog based on the Longoria decision in the Northern District of Ohio federal court, few courts (including none in Ohio) have recognized such a theory of liability.

The guidance goes on to address language issues. With respect to “accent discrimination” it provides that an employment decision may legitimately be based on an individual’s accent if the accent “materially interferes” with the employee’s ability to perform the job duties, but only if effective spoken communication in English is required to perform those duties. As to English fluency, such a requirement is permissible, but again, only if required for the effective performance of the particular position. And, with respect to “English only” policies, the guidance essentially provides that an across the board requirement likely violates Title VII. Any such policy should be narrowly tailored to the requirements of a particular worker in a particular area of operations, and employers must provide adequate notice of language-restrictive policies.

Addressing citizenship issues, the guidance states that Title VII applies regardless of immigration status or authorization to work (but also recognizes that certain immigration laws prohibit employers from hiring individuals who are not authorized to work). Further, it provides that Title VII applies regardless of citizenship or immigration status, so that foreign nationals are also covered.

The guidance also addresses harassment and retaliation in the context of national origin discrimination. And it concludes with a discussion of “promising practices” for employers. Included among these is avoiding word of mouth recruiting, which could magnify existing ethnic, racial or religious homogeneity, recruiting from a diverse pool of potential applicants and having clear conduct standards and performance expectations without regard to issues of culture and ethnicity.

Takeaway
While it remains to be seen whether this guidance and others remain intact during the new administration, it appears likely that this guidance on national origin discrimination will remain in effect for some time to come. After being announced in June as proposed rulemaking, there were only 20 comments received, and there has been no apparent negative reaction to date. Accordingly, this guidance will likely be a part of the EEOC’s compliance manual for the foreseeable future and provides helpful information as to the approach the EEOC is likely to take in the event of a charge of national origin discrimination.

]]>November election results likely will significantly impact labor and employment law in coming yearshttps://www.employerlawreport.com/2016/11/articles/wage-hour/november-election-results-likely-will-significantly-impact-labor-and-employment-law-in-coming-years/
Tue, 22 Nov 2016 14:57:02 +0000http://www.employerlawreport.com/?p=5771Now that it is clear that Donald Trump will be the 45th President of the United States, questions are continuously being asked about how the regime change when he takes office in January of 2017 will impact labor and employment law. Acknowledging that any discussion of Trump’s policies before he takes office on Jan. 20, 2017 is purely speculation, it is important for employers to consider the potential implications on labor and employment law.

Labor law

President-elect Trump will appoint at least two and possibly three new members to the five-person National Labor Relations Board (NLRB). It is likely that …

Now that it is clear that Donald Trump will be the 45th President of the United States, questions are continuously being asked about how the regime change when he takes office in January of 2017 will impact labor and employment law. Acknowledging that any discussion of Trump’s policies before he takes office on Jan. 20, 2017 is purely speculation, it is important for employers to consider the potential implications on labor and employment law.

Labor law

President-elect Trump will appoint at least two and possibly three new members to the five-person National Labor Relations Board (NLRB). It is likely that the individuals President-elect Trump selects will be business-friendly. Although his appointees must be submitted to the Senate for confirmation, they likely will be approved by the Republican-controlled Senate. The newly-constituted NLRB will have the opportunity through its case law decisions to reverse or curtail some of the decisions issued by the Board in recent years. As one example, President-elect Trump’s reconstituted board can be expected to retract the scope of employee’s Section 7 rights to engage in protected concerted activity (very generally, the right to complain about and discuss terms and conditions of employment with co-workers).

The president will also have the opportunity in 2017 to appoint s replacement for the outgoing NLRB General Counsel (GC), the top lawyer for the NLRB. The GC position is an important one. With Guidance memos, the GC can influence the way that local offices of the NLRB enforce the law on the ground. As a significant example, in 2015, the NLRB’s GC issued a 30-page memorandum evaluating the legality of handbook policies that it asserted could be construed as dissuading employees from engaging in protected concerted activity. We reported on this memorandum here. A Trump appointed GC could reverse the very expansive view of concerted activity rights taken by the current GC. Also, a reconstituted NLRB could stymy the further expansion of concerted activity rights by the case decisions it writes.

Wage and hour law

Although there has been much clamor to raise the federal minimum wage, it is unlikely that any federal bill to raise the rate beyond the current $7.25-per-hour floor will pass during the Trump presidency. This means that the current trend toward state and local (county and city) minimum wages that are higher than the federal minimum wage is likely to continue for the next four years.

Further, the DOL rule revising the “white collar” salary basis threshold for overtime exemptions under the Fair Labor Standards Act (FLSA) is particularly vulnerable. The rule—which raises the salary threshold for the white collar exemptions for professionals, executives, and administrative employees from $23,660 per year ($455 per week) to $47,476 per year ($913 per week)—with automatic adjustments every three years—is currently scheduled to take effect on Dec. 1, 2016. A federal court in Texas is considering whether to issue a temporary injunction against the change and has promised a decision by November 22. We reported on the case here. But even if the change takes effect, it could be undermined by the new administration and the Republican-controlled Congress in the future through legislation, regulation, and/or litigation.

A Trump administration DOL may also be less focused on enforcement of independent contractor misclassification, meaning that the pendulum may swing back toward a more relaxed view of independent contractor classifications than that taken by the current DOL that views nearly all workers presumptively as employees.

Immigration law

During his 2016 campaign, President-elect Donald Trump advocated for significant changes to U.S. immigration policy, some of which could impact employers. Specifically, Trump’s hardline stance on deporting undocumented immigrants means that, under Trump’s direction, the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) may ramp up investigation and enforcement of employment verification documentation requirements—likely through E-Verify and I-9 audits.

According to a speech on immigration he made in August, Trump will focus on individuals who overstay their visas. Trump also stated that he would “ensure that E-verify is used to the fullest extent possible under existing law,” and that he would “work with Congress to strengthen and expand its use across the country.”

Additionally, President-elect Trump has stated that he opposes the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA), two initiatives issued by the Department of Homeland Security that seek to protect certain types of undocumented immigrants from deportation and to permit them to work lawfully in the country. Numerous states challenged DAPA and DACA, and a Texas court has preliminarily enjoined their implementation during the lawsuit. President-elect Trump is not expected to defend the government’s position in the Texas lawsuit.

EEO laws and enforcement

While President-elect Trump did not directly address Equal Employment Opportunity (EEO) laws on the campaign trail, it is likely that many of the EEOC’s recent efforts will come under attack by the new administration. Notably, the President-elect is likely to oppose the EEOC’s revised EEO-1 reporting requirements, which will obligate employers to disclose pay data information with already required annual EEO-1 reporting. This change is scheduled to take effect with the 2017 EEO-1 reports, due in March 2017. Several Republican lawmakers introduced legislation to prevent implementation of the new pay reporting requirements, and it is possible that renewed efforts to pass such legislation will occur after President-elect Trump takes office in January.

The Republican Congress and the Trump administration also are likely to take issue with the EEOC’s Strategic Enforcement Plan for the 2017-2021 fiscal years. The SEP continues to push for equal pay, promising to address disparities that persist on all grounds, including sex, race, ethnicity, and disability. Further, the SEP identifies several additional substantive priorities of the EEOC, such as “issues related to complex employment relationships and structures in the 21st century workplace, focusing specifically on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.”

Republican lawmakers, however, have criticized the Commission for activity unrelated to processing the significant backlog of discrimination claims filed with the EEOC, and advanced legislation to force the EEOC to “prioritize its staffing and resources towards reducing the number of current and outstanding unresolved private sector pending charges and public sector hearings,” and to solicit public input before taking any potential action on proposed guidance. It is possible that the EEOC will re-direct its attention toward processing the backlog of charges and away from policy initiatives.

Further, although the EEOC currently takes the position that discrimination on the basis of sexual orientation and/or gender identity is actionable sex discrimination under Title VII (a position that has been backed by some federal court decisions), there is no federal law codifying that stance. The Employment Non-Discrimination Act (ENDA), which would prohibit employment discrimination on the basis of sexual orientation or gender identity, has been introduced over the years and even cleared the Senate in 2013. ENDA is unlikely to gain traction in Congress during its next session. It is likely that the trend toward relying on state and local government to take the lead on protections for sexual orientation and gender identity, including transgender bathroom protections will continue.

The bottom line

Even setting Obamacare to the side for this discussion, labor and employment law could see significant changes during the course of a Trump presidency. These shifts in policy are likely to benefit employers. Speculation about how President-elect Trump will impact labor and employment law will run rampant until his Inauguration and throughout his early presidency. As the legal landscape develops, we will keep you apprised of all of the latest developments, as well as their expected impact on your workplace.

An Ohio federal court in Longoria v. Autoneum N. Am., Inc.has held that a Mexican-American production supervisor who was born in Texas could not pursue a claim that he was discriminated against based on his belief that his employer perceived him to be of Mexican national origin. Noting the “widespread failure” of similar claims under Title VII and the fact that Ohio courts generally follow Title VII when evaluating the analogous Ohio law, the court held that claims of perceived national origin discrimination are not cognizable under …

A special thanks to Adam Bennett for his assistance with this article.

An Ohio federal court in Longoria v. Autoneum N. Am., Inc.has held that a Mexican-American production supervisor who was born in Texas could not pursue a claim that he was discriminated against based on his belief that his employer perceived him to be of Mexican national origin. Noting the “widespread failure” of similar claims under Title VII and the fact that Ohio courts generally follow Title VII when evaluating the analogous Ohio law, the court held that claims of perceived national origin discrimination are not cognizable under Ohio law. The court also rejected Longoria’s claims of race discrimination and retaliation on the merits.

“Perceived national origin” claim not permitted

Although he was of American origin, having been born in Texas, Longoria claimed he suffered discrimination based on the perception he was from Mexico. In support of his claims, Longoria argued that he was fired five months after complaining that someone in the workplace had changed the background on a shared computer to an ethnically offensive cartoon that depicted a caricature of a “Mexican man on a donkey with a sombrero and a poncho.” Thus, Longoria alleged that he was discriminated against because of his perceived national origin. The court rejected this claim, noting that no Ohio case law has validated, or even discussed, such a theory of liability. In reaching this outcome, the court recognized that Ohio courts generally look to Title VII precedent in instances when there is no established precedent under Ohio law. The court concluded Ohio courts would not recognize a perceived national origin discrimination claim “given its widespread failure in the federal district courts.” Because the claim did not state a valid theory of liability, the court granted the employer’s motion for summary judgment on the matter.

The denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group. The Commission will examine with particular concern charges alleging that individuals within the jurisdiction of the Commission have been denied equal employment opportunity for reasons which are grounded in national origin considerations, such as (a) marriage to or association with persons of a national origin group; (b) membership in, or association with an organization identified with or seeking to promote the interests of national origin groups; (c) attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group; and (d) because an individual’s name or spouse’s name is associated with a national origin group.

Employee charges of discrimination brought under Title VII on the basis of being perceived to be in a protected class must still be brought first before the EEOC, which clearly has indicated that it will find probable cause that discrimination occurred. Under Ohio law, employees have the option of pursuing discrimination claims at the Ohio Civil Rights Commission (OCRC) or filing a lawsuit in court. For those charges filed with the OCRC, it is likely that the investigator and the Commission itself will defer to the EEOC’s interpretation of the law. Regardless of how the employee chooses to proceed, it will be an expensive road for the employer to travel before possibly obtaining a favorable decision. Therefore, although the Longoria court held that Ohio law and Title VII do not recognize a cause of action for perceived national origin discrimination, Ohio employers still should take all reasonable steps to ensure that managers’ employment decisions are not based on any factors that can be associated with an individual’s national origin (or for that matter race, color, religion, etc.).